Fair Government at Home and Abroad: Improving Korea’s Foreign Bribery Prevention Act
0
조회
0
다운로드
0
인용
0
참고문헌
키워드
초록
The globalization of business transactions in recent years has drawn greater attention to the problem of foreign bribery. Like domestic bribery, bribery of foreign public officials can lead to a number of adverse consequences, including loss of economic efficiency and government revenue, diminished public trust, and a culture of corruption. To prevent such adverse consequences, anti-foreign bribery statutes, such as the United States’ Foreign Corrupt Practices Act, the Organisation for Economic Co-operation and Development’s Anti-Bribery Convention, and Korea’s Foreign Bribery Prevention Act, are crucial in ensuring the fair and impartial exercise of government functions around the world. This Article thus examines Korea’s legal regime against outbound foreign bribery, the Foreign Bribery Prevention Act (FBPA). In particular, this Article notes three major areas of concern in the FBPA. First, the definition of a “foreign public official” is too vague and unpredictable, particularly where state-owned enterprises are concerned. Second, a statutory defect in the FBPA means that foreign bribery involving a third-party beneficiary is technically not prohibited by the FBPA. Third, the authorized punishment under the FBPA can be insufficient. In order to improve the effectiveness of the FBPA, this Article proposes a set of legislative solutions, including utilizing state control and preferential treatment as a proxy for the exercise of a public function, expanding the scope of the anti-bribery provision to cover bribery with a third-party beneficiary, and authorizing debarment for FBPA violators.
Abstract
The globalization of business transactions in recent years has drawn greater attention to the problem of foreign bribery. Like domestic bribery, bribery of foreign public officials can lead to a number of adverse consequences, including loss of economic efficiency and government revenue, diminished public trust, and a culture of corruption. To prevent such adverse consequences, anti-foreign bribery statutes, such as the United States’ Foreign Corrupt Practices Act, the Organisation for Economic Co-operation and Development’s Anti-Bribery Convention, and Korea’s Foreign Bribery Prevention Act, are crucial in ensuring the fair and impartial exercise of government functions around the world. This Article thus examines Korea’s legal regime against outbound foreign bribery, the Foreign Bribery Prevention Act (FBPA). In particular, this Article notes three major areas of concern in the FBPA. First, the definition of a “foreign public official” is too vague and unpredictable, particularly where state-owned enterprises are concerned. Second, a statutory defect in the FBPA means that foreign bribery involving a third-party beneficiary is technically not prohibited by the FBPA. Third, the authorized punishment under the FBPA can be insufficient. In order to improve the effectiveness of the FBPA, this Article proposes a set of legislative solutions, including utilizing state control and preferential treatment as a proxy for the exercise of a public function, expanding the scope of the anti-bribery provision to cover bribery with a third-party beneficiary, and authorizing debarment for FBPA violators.
참고문헌 (62)
- David Lawler, "Frequently Asked Questions in Anti-Bribery and Corruption 8" (2012)
- Report of the Securities and Exchange Commission on Questionabl e and Ill egal Corporate Payments and Practices, "U.S. Sec. & Exch. Commn", ~ (1976)
- Mike Koehler, "The Story of the Foreign Corrupt Practices Act", Ohio St. L.J, 73, pp.929~ (2012)
- "United Brands Bribe is Laid to Honduran" (1975)[URL]
- Foreign corporate bribes also affect our domestic competitive climate when domestic firms engage in such practices as a substitute for healthy competition for foreign business, "Likewise", ~, pp.S. Rep. No. 95-114 (1977)
- "Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 5002, 102 Stat. 1107, 1415", ~ (1988)
- Daniel K. Tarullo, "The Limits of Institutional Design: Implementing the OECD Anti-Bribery Convention", Va. J. Int’l L, 44, pp.665~ (2004)
- "Enforcement Actions, Stan. L. Sch. Foreign Corrupt Practices Act Clearinghouse"[URL]
- 노영돈, "OECD뇌물방지협약의 국내이행법률에 관한 연구", 법제연구, (45), pp.305~346 (2013), 한국법제연구원
- Jae-Hak Lee, "A Review of the Structural Limit of Bribery Statutes and the Enlargement of Comprehensive Bribery", Ilk am L. Rev, 38, pp.137~ (2017)
- "J. Crim. L", 1996, 261~
- Jae-sang Lee, , pp.716~ (2018)
- Susan Rose-Ackerman, "Corruption and Government: Causes, Consequences, and Reform", pp.86~ (2016)
- "Corruption and Development: Not What You Think?" (2012)[URL]
- Douglas A. Houston, "Can Corruption Ever Improve an Economy?", Cato J, 27, pp.325~ (2007)
- Ray Fisman, "Corruption: What Everyone Needs to Know", pp.85~ (2017)
- "What is Corruption?"[URL]
- Corruption, Public Investment, and Growth, "Vito Tanzi", ~, pp.Int’l Monetary Fund Working Paper No. WP (1997), 97[DOI]
- John Macrae, "Underdevelopment and the Economics of Corruption: A Game Theory Approach", World Dev, 10, pp.677~ (1982)
- "Tackling Corruption in Government" (2019)[URL]
- Bo Rothstein, "All for All: Equality, Corruption, and Social Trust", World Pol, 58, pp.41~ (2005)
- Jong-Sung You, "A Comparative Study of Inequality and Corruption", Am. Soc. Rev, 70, pp.136~ (2005)
- "The Impact of Corruption on Growth and Inequality" (2014)[URL]
- Jennifer Hunt, "Bribery in Health Care in Uganda", J. Health Econ, 29, pp.699~ (2010)
- Nicholas Apergis, "The Relationship Between Corruption and Income Inequality in U.S. States: Evidence from a Panel Cointegration and Error Correction Model", Pub. Choice, 145, pp.125~ (2010)
- Rachel Brewster, "The Domestic and International Enforcement of the OECD Anti-Bribery Convention", Chi. J. Int’l L, 15, pp.84~ (2014)
- Susan Rose-Ackerman, "Transparency and Business Advantage: The Impact of International Anti-Corruption Policies on the United States National Interest", N.Y.U. Ann. Surv. Am. L, 67, pp.433~ (2012)
- Xiaoding Liu, "Corruption Culture and Corporate Misconduct", J. Fin. Econ, 122, pp.307~ (2016)
- "What Do Corrupt Firms Have in Common?" (2016)[URL]
- Kevin E. Davis, "Why Does the United States Regulate Foreign Bribery: Moralism, Self-Interest, or Altruism?", N.Y.U. Ann. Surv. Am. L, 67, pp.497~ (2012)
- Rebecca L. Perlman, "The Political Economy of the Foreign Corrupt Practices Act: An Exploratory Analysis", J. Legal Analysis, 9, pp.153~ (2017)
- "U.S. Dep’t of Justice" (1993)[URL]
- "Foreign Corrupt Practices Act Review: Opinion Procedure Release No. 93-02" (1993)[URL]
- "Foreign Corrupt Practices Act Review: Opinion Procedure Release No. 94-01" (1994)[URL]
- "Foreign Corrupt Practices Act Review: Opinion Procedure Release No. 08-01" (2008)[URL]
- Joel M. Cohen, "Under the FCPA, Who is a Foreign Official Anyway?", Bus. Lawyer, 63, pp.1243~ (2008)
- "Managing Distributors and Third-Party Intermediaries: Coping with the Long-Arm of FCPA Enforcement" (2015)[URL]
- "Statistics & Analysis: Intermediaries, Stan. L. Sch. Foreign Corrupt Practices Act Clearinghouse"[URL]
- "Chung-Ang J. Legal Stud", 2016, 133~
- 이경열, "목적범에서 행사‘할 목적’의 인정에 관한 의문 - 대법원 2004도788 판결과 2012도2468 및 88도1105 판결의 비교 -", 형사법연구, 29(3), pp.363~388 (2017), 한국형사법학회
- 박임출, "시세조종의 구성요건인 ʻ변동거래ʼ와 ʻ유인목적ʼ －서울중앙지방법원 2011.1.28. 선고 2010고합11판결을 중심으로－", 증권법연구, 12(2), pp.211~251 (2011), 한국증권법학회
- "Kor. J. Crim. Case Stud", 2001, 235~
- Dae-Hwi Kim, "Interpretation of Vicarious Criminal Liability", Kor. J. Crim. Case Stud, 10, pp.15~ (2002)
- Beverley Earle, "Examining the JPMorgan “Princeling” Settlement: Insight into Current Foreign Corrupt Practices Act (FCPA) Interpretation and Enforcement", Wash. U. Global Stud. L. Rev, 17, pp.365~ (2018)
- "Hong Kong Charges Ex-JPMorgan Banker in ‘Princeling’ Bribery Case" (2019)[URL]
- "Seoul L.J", 2005, 36~
- 이광수, "법관에 의한 형법규정 해석의 범위와 한계-실화죄에 관한 형법개정안을 계기로 본 입법론적 고찰-", 인권과 정의, (360), pp.64~87 (2006), 대한변호사협회[DOI]
- "Kor. J. Comp. Crim. L", 2002, 353~
- 김선국, "제3자뇌물수수죄(형법 제130조)와 단순수뢰죄(형법 제129조 제1항) 구별기준에 관한 논의 - 대법원 2016. 6. 23. 선고 2016도3540 판결을 중심으로 -", 경희법학, 53(3), pp.131~156 (2018), 법학연구소[DOI]
- (2017)[URL]
- (2009)[URL]
- Young Keun Oh, , pp.75~78 (2011)
- Gary S. Becker, "Crime and Punishment: An Economic Approach", J. Pol. Econ, 76, pp.169~ (1968)
- Isaac Ehrlich, "Crime, Punishment, and the Market for Offenses", J. Econ. Perspectives, 10, pp.43~ (1996)
- Dan M. Kahan, "What Do Alternative Sanctions Mean?", U. Chi. L. Rev, 63, pp.591~ (1996)
- Darlene R. Wong, "Stigma: A More Efficient Alternative to Fines in Deterring Corporate Conduct", Cal. Crim. L. Rev, 3, pp.3~ (2000)
- "Guilty Pleas and Heavy Fines Seem to Be Cost of Doing Business for Wall St" (2015)[URL]
- Uri Gneezy, "A Fine is a Price", J. Legal Stud, 29, pp.1~ (2000)
- "$11 Billion Fine? Just a Cost of Doing Business for JPMorgan: Ritholtz" (2013)[URL]
- 박정훈, "不正當業者의 入札參加資格制限의 法的 諸問題", 서울대학교 법학, 46(1), pp.282~311 (2005), 법학연구소
- , Act No. 4868, , 1995
- Drury D. Stevenson, "FCPA Sanctions: Too Big to Debar?", Fordham L. Rev, 80, pp.775~ (2011)